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2020 Supreme(Mad) 2445
IN THE HIGH COURT OF JUDICATURE AT MADRAS
R.SUBRAMANIAN, J.
Sri Arunachala Mudaliar Charities, Kanchipuram rep. By its Hereditary Managing Trustee Mr.V.Kuppusamy - Appellant
Vs.
Subburaya Mudaliar High School, Kanchipuram rep. By the Caretaker, The District Educational Officer, Kanchipuram - Respondents
S.A.No. 352 of 2014
Decided On : 28-10-2020
Advocate Appeared:
For the Appellant : Mr.P.Elayarajkumar for M/s.Ramalingam and Associates
For the Respondents:Mr.S.T.S.Murthy, Mr.N.Manikandan, Govt. Advocate
Headnote:
Transfer of Property Act, 1872 - Section 106 - Limitation Act 1963 – Article 63, 67 - Second appeal - Permanent lease - Suit for delivery of possession - Suit was resisted by defendant contending that lease as sanctioned by scheme Court is a permanent lease - It was further contended that if plaintiff claims that tenancy is void then possession of defendant is adverse to interest of plaintiff and since possession is open, continuous and uninterrupted for more than statutory period, defendant has perfected title by adverse possession - Certain defects in notice to quit were also pointed out as a defense to claim of plaintiff - An additional written statement was filed claiming that there was some discrepancy in description of property - Whether Courts below are right in dismissing suit for delivery of possession holding that defendants are entitled for benefit of adverse possession to said property - Whether plea of adverse possession is sustainable when original possession was pursuant to a lease which remains unrepudiated - Whether Courts below are right in denying (returning) a finding of adverse possession when defendants admitted possession as a lessee and agreed to pay rent - Whether judgment and decree of trial court dismissing suit and judgment and decree of first appellate Court confirming same is tenable on findings of plaintiff's claim is barred by limitation when no such plea of any adverse possession under Article 67 of Limitation Act being claimed by defendant – Held, Adverting to question of adverse possession, Court have already extracted evidence of defendant - In both oral and documentary evidence, defendant had admitted its status as a tenant and had offered to pay rents to plaintiff that being so in absence of any other evidence to show that defendant had asserted a adverse right and claimed to have been in possession in denial of title of plaintiff, defendant cannot claim title by adverse possession - Second appeal is allowed.
JUDGMENT :
The plaintiff, whose suit for ejectment was dismissed by the Trial Court upon its confirmation by the lower Appellate Court has come up with this second appeal.
2. According to the plaintiff, the suit property measuring about 1 acre 30 cents with a Vasantha Mandapam belonged to it and the same was dedicated to the plaintiff trust by the founder Late Arunachala Mudaliar by virtue of a Will dated 01.05.1896. A scheme was framed for administration of the plaintiff trust on 08.02.1973 in O.S.No. 24 of 1963 on the file of the Sub-Court, Chengulpet. While declaring the suit property as the property of the Trust, there was a direction for leasing out the property to the defendant school. The said proposal to lease was sanctioned by the scheme Court in I.A.No. 392 of 1972. The scheme Court fixed the monthly rent at Rs.30/- and the lease was for a period of 10 years from 01.11.1973.
3. Pursuant to the said order, a lease deed came to be executed fixing the monthly rent at Rs.25/- for the period from 19.02.1974 to 18.02.1984. The plaintiff also claimed that the previous Trustees had acted to the deteriment of the Trust by entering into a lease deed for a rent lower than what was fixed by the scheme Court. Claiming that the Trust is entitled to rent at Rs.100/- per month from 04.12.1970 to 04.01.2004. The plaintiff also contended that it has terminated the lease by issuance of notice on 18.09.2003 and without replying to the said notice it is learnt that the defendant namely, District Educational Officer, Kanchipuram had written to the Head Master of the school requiring him to take steps for acquisition of the land from the Trust. Therefore, the plaintiff sued for ejectment and for arrears of rent for a period of three years.
4. The suit was resisted by the defendant contending that the lease as sanctioned by the scheme Court is a permanent lease. It was further contended that if the plaintiff claims that the tenancy is void then the possession of the defendant is adverse to the interest of the plaintiff and since the possession is open, continuous and uninterrupted for more than the statutory period, the defendant has perfected title by adverse possession. Certain defects in the notice to quit were also pointed out as a defence to the claim of the plaintiff. An additional written statement was filed claiming that there was some discrepancy in the description of the property.
5. At trial, the Trustee of the plaintiff trust one V.Kuppusamy was examined as P.W.1 and Exs.A1 to A9 were marked. Two witnesses were examined on the side of the defendants namely, one Rajendran and one Ellappan as D.W.1 and D.W.2. The said Rajendran is a Supervisor in the Office of the District Educational Officer, Kanchipuram and Ellappan was the Head Master of the school. Exs.B1 to B5 were marked on the side of the defendants. The learned Trial Judge, upon the pleadings, framed the following issues:-
“i) Whether the notice dated 18.09.2003 is valid ?
ii) Whether the plaintiff is entitled to a decree for ejectment ?
iii) To what relief is the plaintiff entitled to ?”
6. The learned Trial Judge even without framing an issue regarding the plea of adverse possession concluded that the defendant has perfected title by adverse possession solely on the ground that the plaintiff has not taken any action to claim rents from the defendant. Based on the said finding, the learned Trial Judge concluded that the notice to quit is not valid. The learned Trial Judge also took note of the fact that the suit property is being used as a play ground for the children in the school and therefore, the plaintiff is not entitled to a decree for possession. On the above conclusions, the learned Trial Judge dismissed the suit. Aggrieved, the plaintiff preferred an appeal in A.S.No. 79 of 2007. The learned Appellate Judge framed the following points for consideration in the appeal :-
“i) Whether the decree and judgment passed by the Trial Court is to be interfered with ?
ii) Whether th
